Atwater v. Barnes

Waite, J. We do not think the court erred, in allowing the executors, in their account, the charge of five hundred dollars, for repairing the house. An appropriation to that extent, was made in the will, for anew house. The testator [242] clearly intended, that his widow and children should be provided with a comfortable habitation. The only objection against this charge, is, that the expenditure was not made by the person appointed for that purpose in the will. The object of that provision evidently was, to secure a judicious application of the money. It was not for him to say, whether another house should be provided, or the widow and her children continue to live in the old one. That question was to be determined, by her and her friends; and when they decided, that another house was necessary and proper, it was for him merely to execute their orders. But when that decision was made, he was absent, in a remote part of the Union, and could not perform the duties assigned him in the will. What then were the family to do? Were they to be without a house, which is found to have been necessary, both for their health and comfort, merely because the agent appointed to procure one, was absent and could not act? Such surely could not have been the intention of the testator. Under such circumstances, we do not think the executors transcended their powers, in making the expenditure themselves. Besides, it is found by the committee, that the repairs were not only necessary for the health and comfort of the family, but that the expenditure was prudently and judiciously made, and the property of the testator increased in value to the extent of the expense incurred. Barnes, since his return, has expressed no dissatisfaction. There has, therefore, been a substantial compliance with the directions of the will. The plaintiff and the other children of the deceased have undoubtedly enjoyed the benefit of the expenditure; have sustained no loss in consequence thereof; and therefore, in our opinion, have no just cause for complaint on that account. 2. The omission of the executors to render a true account of all the debts by them collected, presents a more serious difficulty. The policy of our laws requires, that our probate records shall furnish all needful information relating to the estates of deceased persons, that heirs, creditors, and all others in [243] terested therein, may resort to them, for the purpose of ascertaining their respective rights. Thus, an executor or administrator must cause a true and perfect inventory to be made of all the estate, and all the credits and choses in action, as far as may be, which must be sworn to by him, and deposited with the court. Stat. 352. § 28. He must also give bond with surety, that he will well and truly administer the estate, according to law, make a true and just account of his administration, and deliver all the residue of the estate, which shall be found remaining upon his said account, the same being first examined and allowed by the court of probate, unto such person or persons as the court, by decree pursuant to law, shall appoint, Stat. 348. § 13. Under these statutes, the practice has generally been, to embrace in the inventory all the bonds, notes, and other obligations shewing a specific indebtedness. But as to open and unsettled accounts, where it cannot be well ascertained, until an adjustment has been made, whether there is any balance due to the estate, and if any, how much, it has been usual to credit all sums received, and charge all balances paid, upon such adjustments, in the administration account. Thus the inventory and the account together will then exhibit the true condition of all the estate. In strictness, every sum collected, and not embraced in the inventory, and every debt paid, should be separately entered in the accounts, or upon lists furnished to the court and lodged on file, that every person interested in the estate may not only know what are the assets belonging to the estate, but may be furnished with the requisite means of information, to enable him, by inquiry, to test the accuracy of the account. In the present case, it appears, that more than five hundred dollars, in debts due to the estate, have either been collected, by the executors, or secured to them, of which no account has been rendered, either in the inventory or the administration account. How are the minor children of the deceased, upon becoming of age, to know any thing about the matter? If they resort to the probate records for information, they are much more likely to be deceived than instructed. They find an account, which has been exhibited [244] by the executors, and allowed and approved by the court. In that account, a small sum is credited for the amount of debts collected. The legal presumption is, that it includes the whole; and yet, in fact, it comprehends but a small portion of them. It is said, that the proper remedy is upon the bond to the judge of probate. It would be a very ungracious act, on the part of the judge, to allow an account as just, and then turn around and sue the executors, because it was not a just account. But this precise question has been settled, by two decisions of this court; and it has been holden, that the appropriate remedy is by an appeal. Goodrich v. Thompson, 4 Day, 215. Edmond v. Canfield, 8 Conn. R. 87. Hosmer, Ch. J., in the case last cited, remarked, that “an administration account, sanctioned by the decision of the court, is necessarily precedent to the distribution of the deceased’s estate. Every item in every administration account, must be examined and adjudicated upon, by the court of probate; nor is this a matter of form, but of substance; otherwise, the records of the court, which ought to be of incontrovertible verity, would afford no evidence of the just and legal settlement of an estate.” The proper course, therefore, for the court to pursue, when an account is exhibited, is, to enquire whether it is a true and just one, and embraces all the items which ought, to be included, and nothing more; and if he finds it to be right, to accept and allow it; otherwise, to reject it. And if the executors neglect to present an account that is satisfactory, the proper remedy is, to cause a suit to be instituted upon the bond. It can be of no possible use to pass a decree, sanctioning an account, unless it be a true one, shewing the precise amount of assets in the hands of the executors, and such an one, as may form a basis for subsequent orders, in relation to the disposition of those assets. 3. It is finally said, that as Atwater, the present defendant, has delivered over all the estate of the deceased, to the widow, who is entitled to the use of the same, during the minority of the children, he ought not to be made liable in the present suit. That circumstance might be material in relation to the [245] damages, in a suit upon the bond for not rendering an account; but it can have no effect upon the present case. The object of the appeal, is, merely to correct a decree of the court, in determining the balance of estate in the hands of the defendant, at the time of the settlement, when that balance was not the true one. It is taken by one who is interested in that question, and who was no party to the subsequent arrangement made between the executors, and of course, cannot be affected by it. We are therefore satisfied, that there is no error in the judgment of the superior court, reversing the decree of the court of probate. The other Judges were of the same opinion, except Church, Ch. J., who was absent. Judgment affirmed.